What is a Parenting Plan?
Authored By: Montana Legal Services Association (MLSA)
In this article you will learn about:
- Your rights when you don’t have a Parenting Plan
- How to file in Court for a Parenting Plan
- What happens during a Parenting Plan Lawsuit
- What happens after a Parenting Plan Lawsuit
Montana law no longer uses the words “custody” and “visitation.” Instead, it uses “parenting” to promote the idea that both parents should be involved in the children’s lives as long as it is safe and in the children’s best interests.
A Parenting Plan must be included in every divorce with minor children. Unmarried parents may file for a Parenting Plan as well. Parenting Plans are meant to help avoid disagreements about the parenting of the child. The plan is supposed to protect the child’s best interest, to set out parental authority and responsibility, and to help prevent the parents from having to go back to court.
Your Rights without a Parenting Plan
Both parents have the right and the duty to care for their minor children. Unless a court order is in effect, married parents have equal parenting rights. If the parents are not married, the father does not have specific parenting rights until paternity is established. A Parenting Plan sets out where the children will live, how much time the children will spend with each parent, and how decisions will be made about the children.
A Parenting Plan will help resolve disputes about your child when you and the other parent disagree. You and the other parent may already have an agreement about how to parent your child, but you cannot enforce your agreement without a court order. For example, without a court-ordered Parenting Plan, you cannot necessarily force the other parent to return your child after a visit or prevent the other parent from moving to another state with the children.
Filing for a Parenting Plan
In this section, we’ll talk about the following topics:
- Legal terms and timeline
- Who can file and where to file
- How the court decides parenting
- Limiting parenting time
- Terminating parenting rights
- Setting up a schedule and exchanges
- Child and Medical Support
- Free Court forms
The Petitioner is the party who first asks the Court for a Parenting Plan by filing a Petition for Parenting Plan with the Clerk of District Court.
The Respondent is the other parent. The Respondent will be able to state what they would like in a Parenting Plan by filing an Response to Petition for Parenting Plan. The Respondent must file an Answer within 21 days after getting served with the Petition for Parenting Plan.
If you and the other parent are getting a divorce, you must include a Parenting Plan in your Dissolution of Marriage. You will file your Parenting Plan paperwork with the same Clerk of Court where you file your Dissolution of Marriage paperwork.
Filing a Petition for Parenting Plan does not establish a parenting schedule right away. It starts a Court process to decide where the children will live, what kind of contact the children will have with each parent, and how the parents will make decisions about the child. The Parenting Plan lawsuit ends when the Court orders a Final Parenting Plan.
Either parent may file for a Parenting Plan in Montana only if Montana has jurisdiction over the children. Montana has jurisdiction over the children if they have lived in Montana for at least six months before a parent files a Petition for Parenting Plan. There are some exceptions. Most exceptions deal with safety concerns for the children or one of the parents. If you are in a dangerous situation and need to file a Parenting Plan before your children have lived in Montana for six months, talk to a lawyer.
You can find the laws that talk about jurisdiction in Montana Code Annotated (M.C.A.) § 40-4-211. The “§” is a symbol that means section. 40 is the Title. 4 is the Chapter. And, 211 is the Part. If you have questions about if you can file for a Parenting Plan in Montana, talk to a lawyer.
Where Do I File for a Parenting Plan in Montana?
You must file a Parenting Plan with the Clerk of District Court in the county where the venue is proper. A county may be a proper venue if:
- One or both parents live in the county,
- The children live in the county,
- Or, the children have important ties to the county, like where they go to school or see their doctor.
Based on your situation, there could be more than one county that may be a proper venue. If you have questions about which county to file in, talk to a lawyer.
The Court does not decide parenting based on who filed a Petition first. The Court will determine a Parenting Plan based on what it believes are the "best interests of the child." When deciding what is in the best interests of the child, the Court will consider these factors:
- The wishes of the child's parents;
- The wishes of the child;
- The interaction of the child with the parents, siblings, and other persons who may significantly impact the child;
- One parent's physical abuse or the threat of physical abuse against either the child or the other parent;
- Chemical dependency or abuse by either parent;
- Continuity and stability of care;
- Developmental needs of the child; and
- Whether a parent has knowingly failed to pay birth costs or child support that the parent is able to pay.
You can find the law that talks about the factors the Court will consider when deciding the best interests of the child at Montana Code Annotated (M.C.A.) § 40-4-212. Remember, the “§” is a symbol that means section. 40 is the Title. 4 is the Chapter. And, 212 is the Part. If you have questions about the best interest of the child, talk to a lawyer.
Local Parenting Plan Guidelines
We also recommend that you check with the Clerk of Court or your nearest Self Help Law Center to see if they have local Parenting Plan Guidelines. You can think of the guidelines as a way to add more direction to what the law says a Court should look at when deciding parenting. The Court will likely base its decisions on its local guidelines.
Montana law assumes that it is best for the child if both parents have frequent and ongoing contact with the child. Ideally, both parents will spend close to equal time with their child when it is in the child’s best interests. It is not necessary in all cases for children to spend exactly the same amount of time with each parent.
Sometimes it is not in the best interests of the child to have frequent contact with a parent. The Court may decide to limit contact and/or order supervised visitation with that parent if it is necessary to protect the child from harm. The Court may hold a hearing to decide if it is in the best interests of the child to limit parenting time.
When deciding whether to limit and/or order supervised visitation, the Court will consider such things as:
- Evidence of physical abuse by one parent against the other parent or child
- Evidence of threats of physical abuse by one parent against the other parent or child
- Substance abuse by a parent.
The Court will also consider whether one parent has been convicted of:
- Sexual assault or rape
- Child endangerment
- Partner or family member assault
- Sexual abuse of children
- Strangulation of a partner or family member.
The Court may consider convictions for other crimes when deciding whether to limit contact.
The Court may also consider other issues when limiting parenting time. For example, the Court may consider:
- Child development
- Nursing needs of an infant
- Untreated mental health issues that impact the child
- Availability and location of the parents.
The forms on this website have room for you to ask for limited contact and/or supervised visitation. If you have any questions, talk to a lawyer.
Filing a Petition for Parenting Plan does not terminate a parent’s rights. It only sets out things like where the children will live, how much time the children will spend with each parent, and how decisions will be made about the children. Terminating parental rights means that the parent has no rights at all to interact with the children, and does not pay future child support. A parent whose rights were terminated may still be ordered to pay back child support.
In general, you may only ask the Court to terminate the other parent’s rights through a step-parent adoption. If the other parent does not agree to have their parental rights terminated, they may ask for a Court-appointed lawyer to represent them in the step-parent adoption case. The parent asking for the step-parent adoption does not have the same right to a Court-appointed lawyer. The step-parent adoption forms on this website are only for when both parents agree.
There are other unique situations when you may be able to terminate a parent’s rights without a step-parent adoption. In those cases, the Court may also appoint a lawyer to represent the parent at risk of losing their rights. You can learn more by reading our article on Termination of Parental Rights in Montana. If you have any questions about adoption or terminating parental rights, talk to a lawyer right away.
Parenting Plans can be general or very specific in stating where the children will be at different times. For example, the plan can state who the children will live with before the children start school, while they are in school, during summer and winter vacations, and for different holidays and other special occasions.
The more specific you make your Parenting Plan, the less you and the other parent will be able to disagree over vague or unclear language. It also will be easier to enforce if the other parent violates the plan. For example, you should use language like "the first and third weekends of the month from 5:00 p.m. Friday to 5:00 p.m. Sunday" rather than just "every other weekend." Do not use general language such as "reasonable visitation" if you are worried that the other parent will not follow the plan or that you will have disagreements over what "reasonable" means. Detailed language on the exact parenting schedule may also make it easier for enforcement by law enforcement as well as the Court.
It is also a good idea to think about how you want to exchange your children with the other parent. If you and the other parent often get into disagreements, you might want to include specific information about how you will exchange the children for visits. If the other parent has been abusive to you in the past, you might want to set up a meeting place for the exchange somewhere that is safe and public. For example, the parking lot of a busy restaurant or store. You may also want to check in your area to see if there is a professional supervised visitation and exchange center you can use.
The forms for Parenting Plans on this website have sections where you can ask for specific rules for residential schedules and exchanges for the children. The forms let you ask for specific parenting time during the school year, vacations, weekends, holidays, and special occasions like birthdays.
The Court will include a Child Support Order in the Final Parenting Plan. One or both parents may have to pay child support. Child support must be within guidelines set by the Child Support Enforcement Division (CSED). When you have good reason for why child support should be different than what has been calculated, you may ask the Court to consider a different amount. There are three ways to come up with child support within the guidelines:
- Hire a private lawyer to calculate child support
- Open a case with the Child Support Enforcement Division (CSED)
- Use the free Montana Online Child Support Calculator.
What are the Child Support Guidelines?
The Court will order a child support amount that it finds is reasonable or necessary for raising the child. Marital misconduct does not affect the amount of child support. The Court will base the amount of child support on:
- The financial resources available to the child;
- The financial resources available to each parent (income, pensions, etc.);
- The standard of living the child would have had if the parents were still together;
- The child's emotional, educational, and medical needs;
- The age of the child;
- The cost of day-care; and
- How much time the child spends with each parent.
A private lawyer, the Child Support Enforcement Division (CSED), and the free Montana Online Child Support Calculator will likely all come up with a Child Support Order that meets the guidelines. A private lawyer may be a good option if you have the money and a complicated situation. The Montana Online Child Support Calculator is a good option if you know the other parent’s financial situation, and neither parent gets any temporary income. Temporary income could be money from seasonal work. Opening a case with the CSED is a good option if you are having trouble using the Montana Online Child Support Calculator and cannot hire a lawyer. CSED can also help with enforcing the Child Support Order, as can the Court.
Learn more about the Montana Online Child Support Calculator.
One important factor in figuring out the child support amount is how much each parent is earning. Both parents should complete a Child Support Guidelines Financial Affidavit. You must sign this document in front of a notary, swearing that the information in it is true. You are also required to attach copies of your pay stubs or other documentation of your income.
The Montana Online Child Support Calculator will help you come up with a Financial Affidavit. CSED or a private lawyer will use the Financial Affidavit to come up with a child support calculation.
If you do not already have a Child Support Order, the law requires you to file a copy of a Financial Affidavit with the Court and serve a copy on the other parent as a part of your divorce and/or Parenting Plan case.
What does unemployment do to Child Support?
A parent is still responsible for paying child support even if:
- Their income is unknown, or
- They are unemployed.
In general, the court assumes that everybody could be working 40 hours each week and earning at least minimum wage unless you can show with good reason why you cannot work 40 hours a week. The amount of money you would make from a full time job at the minimum wage is "imputed" to each parent. Imputed means the Court assumes that parent could make that much money.
The court may impute higher than minimum wage if the parent has a higher potential to make more money. Education level and work history may affect your earning potential. For example, if one parent made $75,000 a year for a few years and then took another job at $50,000 a year, the Court may impute the higher wage based on the parent’s earning potential.
How are the Child Support payments made?
Child support payments are generally made by automatic income withholding. Automatic income withholding is when child support comes out of your paycheck. The Court may choose to order a parent to pay child support another way if it finds a good reason for why income withholding is not appropriate.
Income also can be withheld if the child support payment is late. The Court uses the word “delinquent” for late payments. Support is considered delinquent if it is 8 days overdue. If you and the children get public assistance under Temporary Assistance to Needy Families (TANF), the child support payments must be made through CSED.
Notifying the Child Support Enforcement Division
If you are already getting services from CSED or if you get public assistance under TANF, you must notify CSED that you have filed for a divorce or Parenting Plan. The Parenting Plan packet that you can download from this website has a notice to CSED.
Every Child Support Order also must include a section about who will pay for the medical insurance and medical expenses of the minor children.
The general rule is that a parent who has medical insurance available through their employment must cover the children, if the insurance is available at a reasonable cost. If both parents have health plans, they may both provide coverage for the children. Sometimes the court will order both parents to pay premiums, deductibles, or other health care expenses based on percentages determined by the child support guidelines. For example, one parent may have to pay one-third of the expenses, while the other parent pays two-thirds. The obligation to provide medical insurance ends when the child support obligation ends.
You can read what the law says about medical and child support at
Petition for Parenting Plan
We have two kinds of free court forms that you can use to file a Petition for Parenting Plan:
Both forms are the same, just how you fill them out is different.
Response to Petition for Parenting Plan
During a Parenting Plan Lawsuit
In this section, we’ll talk about the following topics:
- Legal terms used in a Parenting Plan Lawsuit
- Interim Parenting Plan
- Order to Show Cause
- Going to Court
- Free Court Forms
The legal term for a parenting lawsuit in Montana is a Parenting Plan Proceeding. Filing a Petition for Parenting Plan only starts the process. It does not immediately establish a parenting schedule. The Court establishes a parenting schedule when it orders a Parenting Plan.
Sometimes a Court will order an Interim Parenting Plan during the Parenting Plan Proceeding. A Parenting Plan Proceeding ends when the Court orders a Final Parenting Plan. A Parenting Plan Proceeding may require one or more Court hearings, depending on how much the parents disagree and how complicated the issues are.
During a legal proceeding, either party may file a Motion to ask the Court to make a decision or take some action. Either parent may file a Motion to ask the Court to issue certain Orders during a Parenting Plan Proceeding. If the other parent does not agree with the Motion, they may file a Response to Motion to explain why they disagree with the Motion. In general, after a parent files a Motion, the Court will schedule a hearing to hear from both parents and make a decision.
Below are common Orders during a Parenting Plan Proceeding.
The Court will often order the parents to mediation. The Court may order mediation more than once. Mediation is a way to solve your problems out of court. Both parents are allowed to have a lawyer with them at mediation.
The mediator is the person that runs the mediation. A mediator is a trained neutral third party who does not take sides. A mediator tries to help you and the other parent come to an agreement that you can both live with.
The mediator does not testify in court, make decisions, or blame anyone. But, the mediator will always file a report after mediation to tell the court if the parties came to any agreement. The report should only say:
- If mediation was successful,
- When it happened, and
- How long it took.
The mediator will not blame any parent or make statements about what they said during mediation in their report.
If you and the other parent cannot make any agreements, then mediation will stop. The mediator will file a report to let the Court know that the parties did not come to an agreement.
If the mediator is able to help you and the other parent come to an agreement, they will help you write out that agreement. That agreement is called a Stipulated Parenting Plan. You can have a lawyer look over the Stipulated Parenting Plan. The mediator will file a report saying that mediation was successful. The mediator may include a copy of the Stipulated Parenting Plan with their report.
You or the other parent would then file a Motion asking the Court to adopt the Stipulated Parenting Plan.
Important: Mediation may not be right for you if:
- There is or has been domestic violence in the relationship; or,
- One parent has physically, emotionally, or sexually abused the child.
If you don’t think mediation is right for you because of any of the above, you will need to notify the Court. To notify the Court:
- Check the Order for Mediation for guidance on what to do if mediation is not appropriate,
- Ask the Clerk of Court or Self Help Law Center if they have a local form to ask the Court to excuse you from mediation; and/or
- File a written Motion that says why mediation is not right for you. In your Motion, you will need to refer to the specific law saying when mediation is not appropriate. You can find that law at M.C.A § 40-4-301.
Important: Sometimes people decide to do mediation even if they or their children have experienced abuse. In these cases, each parent will need to provide written, informed consent to mediation. You can check with the Clerk of Court or Self Help Law Center to see if they have a form for giving consent to mediation in these cases.
You can ask the Court for an Interim Parenting Plan if you need a temporary parenting schedule during the Parenting Plan Proceeding. You may want an Interim Parenting Plan if:
- The children are in danger
- You fear one parent will run away with the children
- You and the other parent cannot agree on parenting time during the Parenting Plan Proceeding.
You ask the Court for an Interim Parenting Plan by filing a Motion for Interim Parenting Plan and an Affidavit. You may also file a Brief in Support of your Motion.
The Brief is where you make a legal argument for why you are asking the Court to order an Interim Parenting Plan. You must base your legal argument on what the law says and the facts of your case. As an example, a Brief might say, “The Petitioner and Respondent cannot agree on regular parenting times. It is in the best interest of the child that the Court order my Interim Parenting Plan.”
The Brief will talk about facts in the Affidavit. An Affidavit is a sworn statement only about facts. You do not make an argument in an Affidavit. An Affidavit will have statements like, “I asked to have parenting time on weekends. The Respondent said I could only have parenting time every other weekend.” A lawyer can help you decide what information to put in your Motion, Brief, and Affidavit. You will need to file your Motion for Interim Parenting Plan with the Court overseeing the parenting case, and serve the other party. You can find a blank Motion Packet you may use to ask for an Interim Parenting Plan on this website.
If one parent is not following the Judge’s orders during a Parenting Plan Proceeding, the other parent may file a Motion to Show Cause. For example, if the Court orders an Interim Parenting Plan, and the other parent is not following it, you may want to file a Motion to Show Cause.
The Motion to Show Cause asks the Court to schedule a hearing for the other parent to explain why they are not following the Judge’s orders.
To learn more, read our article about the 10 Steps to Take When the Other Parent Won’t Follow the Parenting Plan.
Important: Filing a Motion to Show Cause is a serious step to take. There are risks to filing a Motion to Show Cause. There may be other options as well. It is a good idea to talk to a lawyer before filing a Motion to Show Cause.
You always file paperwork for a Parenting Plan case with the Clerk of District Court. The Court may schedule one or more hearings to address issues brought up in paperwork filed in the Parenting Plan Proceeding or at earlier hearings.
A hearing is when both parents will meet with the Judge in a formal setting. The Court will issue an Order Setting a Hearing. Usually, the order will have information about what the hearing will be about. The order will also say the time of the hearing and how long it will last.
Make sure you carefully read and understand the order scheduling the hearing and any Motions either parent may have filed asking for the hearing. You will want to make sure that you stick to the point of the hearing and not bring up other issues unless they are related.
Each parent will have the opportunity to explain their side of the story. At some hearings, the Judge will allow each parent (or their lawyer if they have one) to ask the other parent questions. The Court calls this “cross examination.”
The Judge may also ask both parents questions about the facts they stated and legal arguments they made in their court paperwork or during the hearing.
Here are some tips for representing yourself at a hearing:
- Show up at least 15 minutes early.
- Dress like you’re going to an important job interview.
- Always address the Judge as “Your Honor” or “Judge.”
- Be respectful to everyone. That includes the other parent, Judge, Court staff, and other people in the Court.
- Bring the Court documents you and the other parent filed. Make sure the Court papers are organized.
- Bring your evidence. Make sure that your evidence is organized so that you can easily find it. You don’t want to make the hearing more stressful if you have to dig through papers. Make sure to have copies ready for yourself, the Court and the other side if you want the Judge to look at written evidence or pictures.
- Bring an outline of what you want to say. You can also bring questions that you want to ask the other parent.
- Do not bring your children unless the Court has ordered the children to be there.
- Wait your turn to speak. You do not want to interrupt the other parent and especially the Judge.
- Speak clearly when it is your time. Make sure the Judge and other parent can understand you. You won’t get what you want if the Judge cannot understand or hear you.
- Ask questions. If you do not understand something, you have the right to ask for more information so that you understand. Just remember to be respectful, as hearings can be stressful.
- Make sure you understand what to do next before you leave.
Follow all Court Orders. The Judge may give you verbal orders during the hearing. You must follow those. A Judge may also issue written orders throughout the case. You’ll need to follow those as well. The Clerk of Court will mail you the Judge’s written orders at the address they have on file for you.
If you are confused about what exactly the Judge has ordered during a hearing, it is a good idea to ask for clarification. If you are having a hard time understanding a Judge’s written orders, you’ll want to have a lawyer look them over.
Petition for Parenting Plan
Both forms are the same, just how you fill them out is different.
Response to Petition for Parenting Plan
After a Parenting Plan Lawsuit
- Final Parenting Plan
- Updating the Court with information
- If you move
- Changing your Parenting Plan
- If a parent doesn’t follow the Plan
- Tax issues
The Parenting Plan Proceeding ends when the Court issues a Final Parenting Plan. The Final Parenting Plan will say where the children will live, what kind of contact the children will have with each parent, and how the parents will make decisions about the child. The Final Parenting Plan will also include a Medical and Child Support Order.
It is important that you follow the Final Parenting Plan. This includes things like the following:
- The residential schedule for the children
- Guidelines for when, where, and how to exchange the children
- How parenting decisions will be made
- Child Support
- Medical Support
- Updating the Court about changes to your personal information.
If you have any questions about your Final Parenting Plan, talk to a lawyer.
Parenting Plans require that both parties update the court with changes to the following information:
- Your Social Security number,
- Your residential and mailing addresses,
- Your telephone number,
- Your driver's license number,
- Your employer's name, address, and telephone number,
- If the children are covered by a health or medical insurance plan, the name of the plan, the policy identification number, and the names of the persons covered; and
- If the children are not covered by insurance, information about availability of coverage through your employer.
If you are concerned that updating the Court with this information will put you in danger, let the Court know. The Clerk of Court or Self Help Law Center may have a local form to notify the Court. Or, you may need to file a written Motion to ask the Court to keep certain information private.
Before you move, you must file a Notice of Intent to Move with the Clerk of District Court and serve the other parent with the Notice. If your move will significantly affect the child’s contact with the other parent, you must file and serve the Notice of Intent to Move at least 30 days before you move. You must also include a Proposed Amended Parenting Plan.
You can find what the law says about a Notice of Intent to Move at M.C.A § 40-4-217.
On this website you can find more information and the forms for filing a Notice of Intent to Move.
Most Parenting Plans have a section that says the parents must go to mediation before asking the Court to change their Parenting Plan. The idea is to avoid having the parents go back to court each time there is a disagreement. Ideally, a Parenting Plan will be written so that there is little need to change it as the children grow up.
If you and the other parent agree on changes to the Parenting Plan, you may file a Motion to Amend Parenting Plan (Agreed).
When you don't agree
If you and the other parent cannot agree on changes, the steps for changing a Parenting Plan are complicated. You may ask the Court to change a Parenting Plan by filing a Motion to Amend Parenting Plan. Usually, you must file the Motion with the same Court that ordered your Final Parenting Plan.
In general, to change a Parenting Plan when the other parent does not agree you must show the Court:
- There has been a significant change in circumstances, And
- A new plan is necessary to protect the child’s best interests.
You can find the law for changing your Parenting Plan at M.C.A § 40-4-219.
Most often, you may not change the Parenting Plan until at least 6 months after the Court ordered the current plan. The law says that you may get in trouble if you try to change a Parenting Plan:
- Within 6 months of a Child Support order; or,
- Without making a good faith effort to follow the Parenting Plan, including going to mediation if the Plan says you must.
If you are thinking about changing your Parenting Plan, it is a good idea to talk to a lawyer.
It is serious if a parent does not follow the court ordered Parenting Plan. Not following a Parenting Plan can cause stress to the parents and the child. A parent can ask the Court to change custody if one parent is not following the Plan. A parent can be held in Contempt of Court for violating a Parenting Plan. A parent could face criminal charges for not following a Parenting Plan. You must follow your part of the plan, even when the other parent is not following the Parenting Plan. Two wrongs do not make a right.
You have options and steps that you can take when the other parent is not following the Parenting Plan. Usually, you do not want to rush to court or call the police when the other parent is not following a Parenting Plan unless there is an emergency or immediate safety concern.
Learn more by reading our article 10 Steps for When the Other Parent Won’t Follow the Parenting Plan.
The IRS assumes that the parent who actually has the children most of the time should get the exemptions. The IRS may not rely on the schedule in the Parenting Plan. But, parents are allowed to trade tax exemptions back and forth, using IRS Form 8332.
If you are having problems with the IRS, you can apply for free legal help from Montana Legal Services Association.
- The State Bar Lawyer Referral Service may provide you with contact information for attorneys who provide the type of assistance, for a fee, you are seeking. You can contact the State Bar Lawyer Referral Service at (406) 449-6577 or montanabar.org.
- Montana Legal Services Association (MLSA) provides free civil, non-criminal legal help to eligible clients. Learn more about how to apply for free legal help in Montana.
- If you qualify for help from MLSA, you may be able to get free legal advice from a volunteer attorney by email using Ask Karla.
- Contact your nearest Self Help Law Center for free legal information and forms.
If you want get the Court process started for a Parenting Plan, you can file a Petition for Parenting Plan, You can use our free court forms:
Both forms are the same, just how you fill them out is different.
If you have been served with a Petition for Parenting Plan, you may want to use our free court form for an Response to Petition for Parenting Plan.